Citation Nr: 0709902
Decision Date: 04/05/07 Archive Date: 04/16/07
DOCKET NO. 04-28 979 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUES
1. Entitlement to service connection for the cause of the
veteran's death.
2. Entitlement to Dependents' Educational Assistance
benefits under Chapter 35, Title 38, United States Code.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Motrya Mac, Associate Counsel
INTRODUCTION
The appellant is the spouse of a deceased veteran who had
active duty service from June 1962 to October 1964.
This case is before the Board of Veterans' Appeals (Board) on
appeal from an April 2003 rating decision by a Regional
Office (RO) of the Department of Veterans Affairs (VA).
FINDINGS OF FACT
1. The veteran died in November 1979; the causes of death
listed on his death certificate were: the immediate cause was
carotid artery rupture, due to or as a consequence of erosion
from tracheostomy tube, other significant conditions were
amyotrophic lateral sclerosis.
2. The veteran's death causing disorders were not manifest
in service and there is no competent evidence that such
disorders are causally related to event(s) in service.
CONCLUSIONS OF LAW
1. The veteran's death was not caused by, or substantially
or materially contributed to by, a disability incurred in or
aggravated by his active duty service. 38 U.S.C.A. §§ 1110,
1112, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307,
3.309, 3.312 (2006).
2. The criteria for entitlement to dependent's educational
assistance allowance have not been met. 38 U.S.C.A. § 3501
(West 2002); 38 C.F.R. § 21.3021 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA). Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat.
2096 (2000), is codified at 38 U.S.C.A. §§ 5102, 5103, 5103A,
5107 (West 2002). This legislation provides, among other
things, for notice and assistance to claimants under certain
circumstances. VA has issued final rules to amend
adjudication regulations to implement the provisions of VCAA.
See 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). The
intended effect of the regulations is to establish clear
guidelines consistent with the intent of Congress regarding
the timing and the scope of assistance VA will provide to a
claimant who files a substantially complete application for
VA benefits, or who attempts to reopen a previously denied
claim.
After reviewing the claims folder, the claimant has been
notified of the applicable laws and regulations which set
forth the criteria for entitlement to the matter on appeal.
The discussions in the February 2003 VCAA letter have
informed the claimant of the information and evidence
necessary to warrant entitlement to the benefit sought.
Moreover, in the February 2003 VCAA letter, the appellant was
advised of the types of evidence VA would assist her in
obtaining as well as her own responsibilities with regard to
identifying relevant evidence. See Quartuccio v. Principi,
16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App.
370 (2002).
The Board also notes that the February 2003 VCAA letter
notified the appellant of the need to submit any pertinent
evidence in her possession. In this regard, the appellant
was advised to identify any source of evidence and that VA
would assist in requesting such evidence. She was provided a
copy of the claims folder, and provided an extension of time
to submit additional evidence in support of her claim. The
Board believes that a reasonable inference from such
communication was that the appellant must also furnish any
pertinent evidence that the appellant may have and that the
requirements of 38 C.F.R. § 3.159(b)(1) have been met.
The February 2003 VCAA letter did not address entitlement to
dependents' educational assistance benefits under Chapter 35,
however, it appears that VCAA notice does not apply where (as
here) the law is dispositive (See Dela Cruz v. Principi, 15
Vet. App. 143, 149 (2001)).
The United States Court of Appeals for Veteran Claims'
decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004)
held, in part, that a VCAA notice as required by 38 U.S.C.
§ 5103(a), must be provided to a claimant before the initial
unfavorable agency of original jurisdiction decision on a
claim for VA benefits. In this case, the RO provided VCAA
notice in February 2003, which was prior to the April 2003
rating decision on appeal. Accordingly, the requirements the
Court set out in Pelegrini have been satisfied.
During the pendency of this appeal, on March 3, 2006, the
Court issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which
held that the VCAA notice requirements of 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a service connection claim. Those five elements include:
1) veteran status; 2) existence of a disability; (3) a
connection between the veteran's service and the disability;
4) degree of disability; and 5) effective date of the
disability. The Court held that upon receipt of an
application for a service-connection claim, 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
In the present appeal, regardless of whether the appellant
was provided notice of the types of evidence necessary to
establish a disability rating and effective date for the
issue on appeal, the Board finds no prejudice to the
appellant in proceeding with the issuance of a final
decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993)
(where the Board addresses a question that has not been
addressed by the agency of original jurisdiction, the Board
must consider whether the appellant has been prejudiced
thereby). Since the claim remains denied, any questions as
to the appropriate disability rating and effective date to be
assigned are rendered moot.
Regarding the duty to assist, the RO obtained the veteran's
service medical records. In April 2004, the Medical Care
Center of South Arkansas notified the RO that the veteran's
hospitalization records could not be found. The appellant
submitted a medical statement from the veteran's provider of
treatment to supplement the claim. The RO also provided the
appellant a copy of the claims folder, and provided an
extension of time for her to provide any further evidence.
As there is no competent evidence showing a cause of the
veteran's death was first manifest in service or during a
presumptive period or otherwise associated with an in-service
event, there is no duty to obtain medical opinion in the
case. Wells v. Principi, 326 F. 3d. 1381, 1384 (Fed. Cir.
2003). There are no outstanding requests to obtain available
private medical records that the appellant has both
identified and authorized VA to obtain on her behalf. There
is no reasonable possibility that any further assistance
would be capable of substantiating her claim.
Analysis
The appellant is claiming entitlement to service connection
for the cause of the veteran's death. 38 U.S.C.A. § 1310.
The cause of a veteran's death will be considered to be due
to a service-connected disability when the evidence
establishes that such disability was either the principal or
a contributory cause of death. 38 C.F.R. § 3.312(a). This
question will be resolved by the use of sound judgment,
without recourse to speculation, after a careful analysis has
been made of all the facts and circumstances surrounding the
death of the veteran, including, particularly, autopsy
reports. 38 C.F.R. § 3.312(a). For a service-connected
disability to be considered the principal or primary cause of
death, it must singly, or with some other condition, be the
immediate or underlying cause, or be etiologically related
thereto. 38 C.F.R. § 3.312(b). In determining whether a
service-connected disability contributed to death, it must be
shown that it contributed substantially or materially; that
it combined to cause death; that it aided or lent assistance
to the production of death. It is not sufficient to show
that it casually shared in producing death, but rather it
must be shown that there was a causal connection. 38 C.F.R.
§ 3.312(c)(1).
In the present case, the causes of the veteran's death were
reported on the death certificate to be the following: the
immediate cause was carotid artery rupture, due to or as a
consequence of erosion from tracheostomy tube, other
significant conditions were amyotrophic lateral sclerosis.
The Board first considers whether any of these disorders were
related to the veteran's service.
Applicable law provides that service connection will be
granted for disability resulting from an injury suffered or
disease contracted in line of duty, or for aggravation of a
preexisting injury suffered or disease contracted in line of
duty, in the active military, naval, or air service. 38
U.S.C.A. § 1110; 38 C.F.R. § 3.303. However, that an injury
or disease occurred in service alone is not enough; there
must be chronic disability resulting from that injury. If
there is no showing of a resulting chronic condition during
service, then a showing of continuity of symptomatology after
service is required to support a finding of chronicity. 38
C.F.R. § 3.303(b). Additionally, for veterans who have
served 90 days or more of active service during a war period
or after December 31, 1946, certain chronic disabilities,
such as amyotrophic lateral sclerosis and organic diseases of
the nervous system, are presumed to have been incurred in
service if manifest to a compensable degree within one year
of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38
C.F.R. §§ 3.307, 3.309. Service connection may also be
granted for any injury or disease diagnosed after discharge,
when all the evidence, including that pertinent to service,
establishes that the disease or injury was incurred in
service. 38 C.F.R. § 3.303(d).
A review of the record indicates that during the veteran's
lifetime service connection was not granted in effect for any
disorders. The veteran was awarded nonservice-connected
pension based on paralysis of the lower extremities, possible
amyotrophic lateral sclerosis with atrophy and marked
weakness of the right and left hands and hypertension. The
veteran was in receipt of special monthly pension on account
of need for regular aid and attendance
Service medical records are negative for any of the veteran's
death causing disorders. The appellant argues that the
amyotrophic lateral sclerosis is due to service. She
contends that while amyotrophic lateral sclerosis was
diagnosed around the time of the veteran's death, doctors
were not aware of this disease earlier. The appellant noted
that doctors previously provided diagnosis of an unknown
disorder and the veteran had symptoms such as fatigue,
headaches and bowel syndrome. Service medical records
reflect complaints of headaches and dizzy spells with no
pathology found. Nevertheless, the medical evidence of
record, discussed below, does not suggest or demonstrate that
the veteran had symptoms of amyotrophic lateral sclerosis
during service. Furthermore the appellant as a lay person is
not competent to make a medical diagnosis or to relate a
medical disorder to a specific cause. See Espiritu v.
Derwinski, 2 Vet. App. 492, 494 (1992).
The first post-service medical evidence in the file is a May
1977 VA examination providing diagnoses of hypertension and
possible amyotrophic lateral sclerosis. An August 1977 VA
examination noted atrophy of the hands and hypertension.
1978 VA hospital records revealed assessments of progressive
myelopathy, more likely lower motor neuron disease and
hypertensive midline disc L4-5. A January 1980 letter from a
private doctor explained that the veteran's amyotrophic
lateral sclerosis was a sporadic form and had nothing to do
with any hereditary problems.
Hence, the record is devoid of any post-service evidence of
the veteran's death causing disorders, to specifically
include amyotrophic lateral sclerosis, for many years after
service. There is simply no continuity of pertinent
symptomatology to relate the causes of his death to his
military service. Furthermore, there is no competent
evidence that amyotrophic lateral sclerosis manifested to a
compensable degree within one year from discharge from
service.
Based on the record, the Board must conclude that there is a
preponderance of evidence against a finding that the
veteran's amyotrophic lateral sclerosis, carotid artery
disorder and tracheostomy were manifested during service, or
within one year of his discharge from service or that they
were otherwise related to his military service.
The veteran's death was not caused by a service-connected
disability. In addition, the veteran did not have a
permanent and total service-connected disability while he was
alive and he did not die while under permanent and total
disability. In order for the appellant to be eligible for
educational assistance under the provisions of Chapter 35,
the veteran must have died of a service-connected disability
or died while having a disability evaluated as total and
permanent in nature resulting from a service-connected
disability. See 38 U.S.C.A. § 3501; 38 C.F.R. § 21.3021.
The appellant does not meet the basic requirements for
educational assistance under the provisions of Chapter 35.
In sum, the Board acknowledges the appellant's contentions.
However, there is no basis for finding that the cause of the
veteran's death was in any manner related to his military
service. In reaching this determination, the Board is unable
to find such a state of approximate balance of the positive
evidence to otherwise warrant a favorable decision.
ORDER
The appeal is denied as to both issues.
____________________________________________
T. MAINELLI
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs